Hennis lawyers argue for more resources in murder appeal

Drew Brooks Military editor @DrewBrooks

Tuesday

Oct 10, 2017 at 6:18 PMOct 10, 2017 at 7:15 PM

A panel of federal judges indicated they may be unable to force the government to provide additional support to the defense of convicted killer Timothy Hennis, but warned government lawyers that it may be in their best interest to solve the issues on their own.

The U.S. Court of Appeals for the Armed Forces heard arguments during a short hearing in the case of U.S. vs. Hennis on Tuesday, with lawyers for the former Fort Bragg soldier now on death row repeating arguments that they need additional resources and personnel for Hennis’ appeal, which stems from a 2010 court-martial on Fort Bragg.

Lawyers for the government rejected the plea for resources and asked that the appellate court do the same.

A panel of judges in Washington heard their case, with at least two of the judges expressing dismay over the state of the defense team representing Hennis, who was convicted in 2010 of killing a mother and two of her children.

The case received national attention not only for the crimes, but also the unique way it has played out in court.

Following the original crimes in 1985, Hennis was tried three times — including twice in civilian courts.

He was convicted, then won an appeal for a new trial during which he was acquitted of the murders. Years later, the Army called Hennis back to active duty to face a court-martial on Fort Bragg for the crimes.

Capt. Tim Burroughs, the lead lawyer defending Hennis, has stated in court motions that he does not have the experience or resources to properly represent Hennis.

“Capital cases are among the most complex, long-lasting and specialized cases we try in our system,” he said. “The case of Timothy Hennis is certainly no exception.”

According to a motion filed in the appeal, Burroughs represents more than two dozen others soldiers in various stages of appeal, has never defended an accused at trial, participated in a murder trial or prosecuted a case of comparable complexity.

Over five years, seven other Army defense lawyers have represented Hennis, Burroughs has argued. None have had the experience or resources to represent Hennis, none were able to review the entire record of trial and none have been assigned longer than two years.

Government lawyers have rejected past requests for more money to hire additional lawyers and other resources. In Washington, Capt. Sam Landes repeated their arguments that it was up to defense leaders, not the government itself, to decide how money is spent in the case.

Judge Margaret A. Ryan warned Landes that the government needs to take the claims seriously and noted that their response to the Hennis motion was signed by four lawyers.

“This is not a game,” Ryan said.

Ryan noted there are standards for counsel in death penalty cases in most states that require learned counsel. There are also American Bar Association standards and revised standards in military courts that will take effect next year.

She said the appellate court may have their hands tied in forcing the government to provide additional resources, but cautioned that defense lawyers were building a case to show Hennis is receiving ineffective support from his defense team.

“You’re playing a very dangerous game,” Ryan said after chiding government lawyers for not taking the issues seriously.

“You can win the battle and lose the war,” she said. “The concerns the appellant are raising at this point about standards — they don’t go away… The fact that we can’t do anything now doesn’t make this whole thing go away.”

Another judge said the government was playing “a morbid game of chicken” in regards to the case.

The hearing and request for additional funds are part of a mandatory review of the Hennis’ conviction on three counts of premeditated murder for the deaths of Kathryn Eastburn and two of her daughters — 5-year-old Kara and 3-year-old Erin — at their Summerhill Road home off Yadkin Road. A third child, 22-month-old Jana, was found alive.

The Eastburn murders drew national attention and were the focus of several television specials, a book and a miniseries.

At the time of the killings, Kathryn Eastburn’s husband, Gary, was in the Air Force and training in Alabama.

Hennis, who had adopted a dog from the Eastburn family shortly before their deaths, quickly became a suspect.

He was convicted in Cumberland County Superior Court and put on death row in 1986, but won an appeal and was found not guilty in a new trial in Wilmington in 1989.

Hennis resumed his Army career, retiring in 2004.

Two years later, the Army brought Hennis, a master sergeant, out of retirement to face a court-martial on the charges after DNA evidence not available at the earlier trials linked him to the murders.

A military judge sentenced Hennis to death for the crimes. He was also stripped of his rank and forced to forfeit his pay and allowances. Hennis is incarcerated at the U.S. Army Disciplinary Barracks at Fort Leavenworth, Kansas.

Burroughs also asked the court to force the government to provide a mitigation specialist and fact investigator for the appeal.

Landes argued that Hennis’ lawyer has not shown the need for those resources.

The court did not immediately rule on the motion.

Military editor Drew Brooks can be reached at dbrooks@fayobserver.com or 486-3567.

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